A recent Illinois Bar Journal article regarding New Ethics Rules by Donald E. Weihl looks into the new version of Rule 3.7 and provides explanations for Chicago-area and all Illinois attorneys. Though the new version of Rule 3.7 does not change the law, it expresses more clearly the circumstances under which lawyers must refute a case because they might be called to the witness stand. The old rule read: “(a) a lawyer shall not accept or continue employment in contemplated or pending litigation if the lawyer knows or reasonably should know that the lawyer will be called as a witness…” The new rule reads: “A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” The new rule expressly applies to trial situations whereas the old rule was unclear. The new wording implies that the attorney may take new business or continue old business as long as he or she does not act as an advocate in court proceedings.
Nothing in the Illinois Professional Conduct Rule 3.7 prevents an attorney who may not act as an advocate at a trial from participating in other phases of litigation. The comments in the new rules also make it crystal clear that the purpose of the rule is to avoid prejudice. As long as the attorney does not act as an advocate or have a conflict of interest, the attorney can be retained or continue an existing engagement. The guidance following the new version of the rule in the comments provides an in-depth analysis and makes extensive research into the meaning of the rule unnecessary for Illinois attorneys.
More information for Illinois attorneys is available in the November 2010 issue of the Illinois Bar Journal.